Vijaya Lakshmi S. Wife Of ... vs The State Of Jharkhand Through ...
2021 Latest Caselaw 875 Jhar

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                               W.P. (S) No.2587 of 2020
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Vijaya Lakshmi S. wife of Rajashekaran Pillai, aged about 56 years, resident of Village 4/B Vishwagiri Apartment Jorathalab, P.O Bariatu, P.S. Bariatu, District Ranchi, Jharkhand .... .... .... Petitioner Versus

1. The State of Jharkhand through Principal Secretary, Health, Medical Education and Family Welfare Department, Government of Jharkhand, Ranchi, Nepal House, P.O. Doranda, P.S. Doranda, District Ranchi, Jharkhand

2. Deputy Secretary, Department of Health, Medical Education and Family Welfare, Government of Jharkhand, Ranchi, P.O. Dhurwa, P.S. Dhurwa, District Ranchi, Jharkhand

3. Jharkhand Nurses Registration Council, Nurses Hostel, RIMS Campus, Bariatu, P.O Bariatu, P.S. Bariatu, District Ranchi, Jharkhand

4. State of Bihar through Secretary, Health, Medical Education and Family Welfare Department, Government of Bihar, 1st Floor, Vikash Bhawan, Bailey Road, Sheikhpura, P.O. Sheikhpura, P.S. Sheikhpura, District Patna, Bihar

5. Bihar Nurses Registration Council, 75 Bailey Road, MLA Colony, Raja Bazar, Sheikhpura, P.O. Sheikhpura, P.S. Sheikhpura, District Patna, Bihar

6. Theyamma P.T. wife of Wilson Anthony resident of Maplaseryil House, P.O. RVC Arsanday, P.S. Kanke, District Ranchi, Jharkhand .... .... .... Respondents

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

For the Petitioner : Mr. Ajit Kumar, Sr. Advocate Ms. Kumari Sugandha, Advocate For the Respondents-State : Mr. Om Prakash Tiwari, G.P. III For the Respondent No.5 : Mr. Binit Chandra, Advocate For the Respondent No.6 : Mr. Deepak Kumar Advocate For the State of Bihar : Mr. Diwakar Upadhyay, Advocate

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05/23.02.2021 Heard Mr. Ajit Kumar, learned senior counsel for the petitioner assisted by Ms. Kumari Sugandha, Mr. Om Prakash Tiwari, learned counsel for the respondent-State, Mr. Binit Chandra, learned counsel for respondent no.5, Mr. Deepak Kumar, learned counsel for respondent no.6 and Mr. Diwakar Upadhyay, learned counsel for State of Bihar.

This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

The petitioner has preferred this writ petition for quashing of order dated 24.08.2017 issued by the respondent no.2 by which respondent no.6 has been given additional charge of Registrar cum Secretary of the Jharkhand Nurses Registration Council. Further prayer is made for

consideration of candidature of the petitioner and thereafter appoint the petitioner to the post of Registrar cum Secretary of the Jharkhand Nurses Registration Council.

On 15.01.1990, the petitioner was appointed as Staff Nurse and thereafter she was posted at Rejendra Medical College and Hospital at Ranchi. The petitioner was selected for the post of Basic B.Sc. Nursing Course for which Government authority accorded her the permission to pursue the said course for the year 2008-11. The petitioner worked as Clinical Instructor at College of Nursing at Rajendra Medical College and Hospital at Ranchi in the year 2010-13. The petitioner was appointed as Nursing Superintendent at RIMS, Ranchi on 28.08.2014. The petitioner was promoted and transferred to Sadar Hospital, Ranchi as Sister Tutor on 19.09.2016 and at present the petitioner is officiating as Principal In- Charge Auxiliary Nurses Midwife Training School, Sadar Hospital, Ranchi. On 12.02.2020, the Director in Chief, Health Services, Jharkhand issued a Sister Tutor Seniority list wherein the name of the petitioner is at serial no.10 of the said seniority list and respondent no.6 is at serial no.13. The respondent no.6 was appointed on 07.08.1993 as Staff Nurse in Patna Medical College and Hospital but she did not join the said post. The respondent no.6 gave her joining at RIMS, Ranchi as a Staff Nurse on 09.05.2000 after lapse of seven years. The respondent no.6 was posted against the vacant post of Public Health Nursing at School of Nursing, Rajendra Medical College and Hospital, Ranchi on 28.05.2014. On 24.08.2017, the respondent no.6 was given additional charge of Registrar cum Secretary, Jharkhand Nurses Registration Council.

Mr. Ajit Kumar, learned senior counsel appearing for the petitioner submits that the respondent no.6 is continuing on the post of Registrar cum Secretary, Jharkhand Nurses Registration Council in teeth of violation of Bihar Nurses Registration Council (Appointment and Condition of Services of Registration) Regulation (hereinafter referred as "Regulation"). Mr. Kumar draws the attention of this Court to the said regulation and submits that this was made under Section 8(1) of the Bihar Nurses Registration Act, 1935 for appointment, duties, powers, suspensions and removal of Registrar as approved by the Government of Bihar on the recommendation of Bihar Nurses Registration Council. He refers to Clause 3 of the Regulation and submits that the eligibility and registration has been defined therein. For the sake of convenience the said Regulation

is quoted hereinbelow:-

"3. There shall be a Registrar of the Council appointed by the Council under Section 7 of the Act.

Eligibility and Qualification of the Register

(i) Shall be an Indian Citizen

(ii) Shall have passed Secondary School Examination or its equivalent

(iii) Shall be a Registered Nurse/Registered Midwife, due weightage will be given as per Government of Bihar reservation criteria.

(iv) Shall have a minimum of 10 years experience in teaching in a Government Nursing School in a recognised Nursing Institution/School Academy by whatever name called or administration in Nursing in Government Hospital or an Institution recognised for the purpose by Government have at least a Diploma in Nursing Administration of Nursing education or P.H.N. qualification.

                   (v)       Age shall be minimum of 35 years or above.
                   (vi)      The Registrar shall be paid salary at par the salary

of senior matrons Senior Tutor/Principal Tutor/Senior PHN/Bihar Services

(vii) Shall have no adverse remarks in Annual confidential report

The post of Registrar shall be filled up by advertisement or invitation as the Director-in-Chief may direct for that purpose. If it is decided to appoint by advertisement, the Council shall invite applications by open advertisement in two newspapers published in Bihar. Any person in Government service imparting teaching or administrative job nurse may apply for the post of Registrar. Application Form from such persons who are employed as above should be accompanied by a "No Objection Certification from the head of the Department or the Appointing Authority as the case may be.

The Registrar shall ordinarily hold office for three years which may be extended for a further term of three years but not beyond the age of 58 years.

The Government may recall its employee at any time for administrative reasons and the service of the Registrar will in that case automatically be terminated. Except as stated above, the Bihar Services (Discipline and Appeal) Rules, 1935, the Bihar Government Conduct Rules, the Bihar Board's Miscellaneous Rules and the Bihar Service Code shall mutatis mutandis apply to the case of the Registrar as if they form part of this Regulation There shall be a Selection Committee consisting of the President and the entire Council members for appointment and recommendation to the Council for such appointment any person found fit for the same.

In the event of the post being vacant, it shall be open to the Director-in-Chief to make temporary arrangement until a Registrar is duly appointed."

He submits that the Registrar is required to hold the post for three years which can be extended for a further term of three years but not

beyond the age of 58 years. He further submits that respondent no.6 has already continued on that post for 4½ years in view of the fact that she was appointed on 24.08.2017 (Annexure-6). He draws the attention of this Court towards one enquiry report which has been brought on record by way of filing supplementary affidavit. The said enquiry report was made pursuant to the dispute cropped up of the petitioner and respondent no.6 and by way of enquiry report he submits that the appointment of respondent no.6 was found to be doubtful. He submits that in the enquiry report it has come that the respondent no.6 joined in the year 2000 and confirmation of services has not been made. Experience of respondent no.6 is also doubtful. The respondent no.6 has never been promoted to the post of Sister Tutor. In the year 2016 list, the name of respondent no.6 is not there. In the enquiry report, information has been given with regard to the petitioner as well as respondent no.6 and it has been opined that except these two persons others can be considered for that. He submits that in view of enquiry report also and in view of Clause 3, post of Registrar is required to be filled up by way of regular appointment and ad hoc cannot be allowed to be continued for a long time. He submits that this aspect of the matter has been considered by the Division Bench of this Court in the case of Pitamber Tiwari Versus State of Jharkhand reported in 2004 (4) JCR 114. Para 7 and 8 of the judgment is quoted hereinbelow:-

"7. The respondents have raised the question of maintainability of the present public interest litigation and have opposed the prayer for issuance of a writ in the nature of quo warranto but they have not disputed the following facts :

(i) The 4th respondent was not a State Government employee but was an employee of the JSEB, retired on 31st December, 2002 i.e. prior to the issuance of the impugned Notification No.-19/Uo(Budget)-58/2001-Part-1-2 29/Ranchi. dated 8th February, 2003.

(ii) The impugned Notification No.-19/Uo(Budget)-58/2001- Part-1-229/ Ranchi. dated 8th February, 2003, has not been issued by the State Government or "by the order of the Governor of Jharkhand", it has been issued by the Deputy Secretary, Energy Department, Government of Jharkhand, who has no Jurisdiction to appoint a Nodal Officer for Hydel Projects under the JREDA.

(iii) The post of Nodal Officer, Hydel Projects has not been created in JREDA nor any post of Nodal Officer, Hydel Projects has been created in the Energy Department, Government of Jharkhand. Thus, the appointment of 4th respondent appears to be against a non-existent post.

(iv) Neither the State Government nor JREDA had called for applications from eligible candidates for appointment to the post of Nodal Officer, Hydel Projects. Names were also not called for from any of the Employment Exchange. No

advertisement was published in any of the newspaper. And

(v) There are allegations of financial irregularity improper investment and misappropriation of Government money against the 4th respondent regarding which audit reports have already been submitted.

In spite of specific direction given by this Court on 30th April, 2004. 2nd respondent did not produce the agenda for the meeting held on 19th February, 2003, Whether a person has locus standi to prefer a public interest litigation fell for consideration before the Supreme Court in the case of Mehsana Distt. Central Co-op. Bank Ltd. v. State of Gujarat, reported in (2004) 2 SCC 463. In the said case, the Apex Court held:

"......the Acts and rules are made to be followed and not to be violated. When the statute prescribes norms to be followed, it has to be in that fashion. Converse would be contrary to law. If there is any allegation of violation of statutory rules which have been brought to the notice of the authorities and if authorities concerned do not perform their statutory obligation, as in the present case, any aggrieved citizen can always bring to the notice of the High Court the inaction of the statutory authorities and in such a event it would always be open to the High Court to pass an appropriate order as deemed fit and proper in the facts and circumstances of the case......

" So far as writ of quo warranto is concerned, in the case of B.R. Kapoor v. State of T.N., reported in 2002 (1) JCR 180 : (2001) 7 SCC 231, the Supreme Court held :

"......a writ of quo warranto is a writ which lies against the person, who according to the relater is not entitled to hold an office of public nature and is only a usurper of the office. It is the person, against whom the writ of quo warranto is directed, who is required to show, by what authority that person is entitled to hold the office. The challenge can be made on various grounds, including on the grounds that the possession of the office does not fulfill the required qualifications or suffers from any disqualification, which debars the person to hold such office......."

8. In the present case, there is a specific allegation made that the Clause 2.15 of the Memorandum of Association has been violated and the appointment of 4th respondent has been made by an authority, who has no jurisdiction to appoint. The appointment has been made in violation of Articles 14 and 16 of the Constitution of India. In spite of bringing the aforesaid facts to the notice of the authorities that they have failed to perform their statutory obligation and, on the other hand, they have supported such action. In this background, the present public interest litigation is maintainable at the instance of the petitioner.

As the 4th respondent has been appointed by the Government of Jharkhand by Notification No.-

19/Uo(Budgel)-58/ 2001-Part-1-229/Ranchi, dated 8th February, 2003, after his retirement from the services of JSEB. he is more than 58 years age and thereby suffers from disqualification to hold the public office, a writ of quo warranto will also lie as against 4th respondent, who according to petitioner, is not entitled to hold an office of public nature and is an usurper of the office. In this

background, the objection raised by the respondents regarding maintainability of this public interest litigation cannot be accepted and therefore, such objection is rejected."

He further submits that in the case of Santosh Kumar Singh Versus State of U.P. & Others reported in (1996) 2 SCC 45 qualification has been considered and in that case it has been held that initially ad hoc appointment was not in accordance of the provisions and the petitioner of that case was appointed without jurisdiction and in view of the fact that the petitioner of that case was not having requisite qualification is not otherwise eligible for being considered. At this stage he submits that the Court may issue quo warranto and regular promotion may be made for that post.

Mr. Om Prakash Tiwari, learned counsel for the respondent-State submits that the Bihar Government Conduct Rules, the Bihar Board's Miscellaneous Rules and the Bihar Service Code will apply mutatis mutandis. He submits that in Bihar Service Code, age of retirement has been enhanced to 60 years. However, he fairly submits that the regular appointment is required to be made which has not been done in view of pandemic situation in the State.

Mr. Deepak Kumar, learned counsel for respondent no.6 submits that the respondent no.6 is having requisite qualification that is why the respondent no.6 has been appointed on the said post. He refers to the counter affidavit of respondent no.6 and submits that Indian Nursing Council Act which has been brought by way of Annexure R-3 wherein qualification is fixed as M.Sc. (N) and the respondent no.6 is only who is having the said qualification. He further submits that in view of Rule 3 the age of retirement is 60 years as the Bihar Service Code applies mutatis mutandis. He further submits that the petitioner's qualification is under cloud for that he refers to certain Annexures annexed with the counter affidavit.

Mr. Diwakar Upadhyay, learned counsel for State of Bihar submits that the appointment letter has been issued by the State of Jharkhand and the petitioner has got no role in the confirmation which has cropped up here. He submits that the said regulation is already there and the post on which the appointments are required to be made, State of Jharkhand is required to be looked into.

Mr. Binit Chandra, learned counsel for respondent no.5 submits

that when the regulation is there in the light of regulation i.e. Bihar Nurses Registration Council (Appointment and Condition of Services of Registration) Regulation appointment is required to be made.

Having heard learned counsel for the parties and after going through the records, it transpires that the enquiry committee was constituted. In the enquiry report it has also been opined that fresh appointment is required to be made by way of appointing another process. Clause 3 stipulates that the appointment shall be made for three years which can be extended for further three years but not beyond the age of 58 years. The respondent no.6 has already completed on the said post as ad hoc appointee for 4½ years. Further extension in terms of the said regulation has not been brought on record. Regulation says that it will not be beyond 58 years and the respondent no.6 has completed the age of 58 years on 10.05.2020. The argument of learned counsel for the respondent- State and respondent no.6 with regard to culpability of the of Bihar Government Conduct Rules, the Bihar Board's Miscellaneous Rules and the Bihar Service Code will apply mutatis mutandis and in the service code age is reflected as 60 years of retirement is concerned but that is subject to except as stated above meaning thereby the criteria and qualification which has already been indicated in Clause 3 that will remain intact and thereafter Bihar Government Conduct Rules, the Bihar Board's Miscellaneous Rules and the Bihar Service Code will apply mutatis mutandis. There is no document on record to suggest that age of 58 years has been enhanced to 60 years so far the appointment of Registrar of council is concerned.

In that view of the matter, the argument of learned counsel appearing for the respondent and respondent no.6 is not accepted by the Court as there is specific condition in accepting that particulars. The argument of Mr. Deepak Kumar, learned counsel for respondent no.6 with regard to qualification M.Sc. (N) is concerned that is not inconsonance of the Clause 3 of Bihar Nurses Registration Council. In Clause 3 of Bihar Nurses Registration Council (Appointment and Condition of Services of Registration) Regulation, qualification and eligibility have already been stipulated which is quoted (supra). So far Section under Section 8(1) of the Bihar Nurses Registration Act, 1935 for appointment is concerned, eligibility qualification of the Registrar will govern in terms of that.

In view of above discussion, the writ petition is being disposed of directing the respondent nos.1 and 3 to fill up the said post by way of fresh

publication in terms of Clause 3 and in accordance with law immediately. The exercise of appointment on such post shall be completed within a period of eight weeks. It is made clear that if the post is not filled up within the above period, the respondent no.6 shall not continue thereafter on the post of Registrar. In view of controversy, the Court has not examined about the rival contention of the petitioner as well as respondent no.6 with regard to their eligibility.

With the above observation and direction, the writ petition is disposed of.

I.A. No.5084 of 2020 is also disposed of.

(Sanjay Kumar Dwivedi, J.)

Anit